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THE PROPER METHOD 


OF 


COUNTING THE ELECTORAL VOTE. 


OPINION OF THE 

HON. K? p/k ANNE Y, 

OF OHIO. 


V 


h 



NEW YORK: 

D. APPLETON AND COMPANY, 
5 4 9 & 551 BROADWAY. 

1877. 





THE PROPER METHOD OF COUNTING THE 
ELECTORAL VOTE. 


lion. W. W. Macfarland , New York. 

Dear Sir : I have reconsidered your request to put upon 
paper my views respecting the dangerous complications aris¬ 
ing out of the late presidential election, and have concluded 
to comply with it. The subject, it must be conceded, con¬ 
cerns the most vital of the principles upon which our institu¬ 
tions rest, and lies at the very foundation of the peace and 
security of the people. With the most perfect propriety did 
Mr. Jetferson, in his first inaugural address, class among the 
“ essential principles ” of the Government “ a jealous care of 
the right of election by the people, a mild and safe corrective 
of abuses which are lopped by the sword of revolution where 
peaceable remedies are unprovided ; ” and “ absolute acquies¬ 
cence in the decisions of the majority, the vital principle of 
republics, from which is no appeal but to f qyq.q, the vital prin¬ 
ciple and immediate parent of despotism; ” and, with a 
strength and beauty of expression peculiarly his own, combin¬ 
ing historic truth and solemn admonition, he adds: “These 
principles form the bright constellation which has gone before 
us, and guided our steps through an age of revolution and 
reformation. The wisdom of our sages and blood of our heroes 
have been devoted to their attainment; they should be the 
creed of our political faith, the text of civic instruction, the 
touchstone by which to try the services of those we trust, and, 
should we wander from them in moments of error or alarm, 
let us hasten to retrace our steps, and to gain the road which 



4 


alone leads to peace , liberty , safety .” No one can dis¬ 

guise from himself the fact that a large number (I think I may 
©ay a large majority) of the American people are most seri¬ 
ously apprehensive that these sacred principles are in danger 
of being overthrown, by giving effect to false and fraudulent 
returns of the vote of one or more States, upon which the issue 
of the presidential contest may depend. They honestly think 
that States have legally voted, by decisive majorities, for the 
Tilden and Hendricks electors, which have been illegally re¬ 
turned for their competitors, and that the arbitrary use of such 
returns to determine the election would be a fraud alike upon 
those States and every other State in the Union. Abating 
something from the apprehension generally felt that such use 
will be made of these returns, I share fully in the conviction 
expressed ; but I could not retain my own self-respect, or con¬ 
sider myself worthy of the high privileges of an American 
citizen, if I did not hold myself open to receive and fairly 
consider any further facts that may be developed. In saying, 
therefore, for myself, that all I desire or expect is an honest 
and truthful decision upon all the facts brought to light, when 
applied to the election laws of those States, I believe I am ex¬ 
pressing the wish, not alone of those who coincide with me 
in opinion, but of all who are still in doubt, and even the 
mass of those who have formed a different opinion. 

With such a decision, whatever might be the result, uni¬ 
versal acquiescence would be secured, and men could again 
return to their ordinary avocations, with the comforting assur¬ 
ance that our institutions were equal to every emergency, and 
that truth, justice, and manhood, still ruled in the councils of 
the country. 

But to every suggestion of such a settlement the answer is 
that no authority has been conferred upon any earthly tribu¬ 
nal to go back of the certificates of the returning board : that, 
whether they have certified truth or falsehood, it is equally 
conclusive; and that the President of the Senate alone, of all 
the Federal authorities, has any further duty to perform ; and 
he only the ministerial duty of opening, in the presence of the 
two Houses, the certificates of the electors and counting the 
votes therein contained. These results are said necessarily to 


0 


follow from the tact that the members of the returning board 
are merely State officers, executing the election laws of the 
State, and that any interference with what they may do would 
be an encroachment upon the reserved rights of the State ; and 
from the total want of any authority conferred upon any branch 
or department of the national Government. 

These positions are certainly not weakened by the fact that 
the gentlemen who put them forward have not heretofore been 
regarded as very solicitous for the rights of the States when 
they were supposed to conflict with Federal power; and yet, 
if these members are mere State officers, executing State du¬ 
ties, it is somewhat difficult to see how a Federal court could 
intervene and withdraw them from the control of the highest 
court in the State. 

But, be this as it may, after a careful examination of the 
whole subject, and bestowing much reflection upon it, I have 
arrived at the conclusion that our fathers have made no such 
cover for a fraudulent despotism, and have imposed no such 
ruinous imbecility upon the government of a free people. On 
the contrary, I am perfectly satisfied that the representatives 
of the States and the people, composing the two branches of 
the national Congress, have been invested with the most am¬ 
ple authority to protect each State, and all the States, from 
every attempt at fraud or illegality in the return or counting 
of the electoral vote; and I cannot regard an abdication of 
this authority, either from partisanship or timidity, as any¬ 
thing short of a criminal breach of one of the most sacred 
trusts committed to their keeping. 

I shall state briefly my reasons for this conclusion : 

1. Upon the precise question here presented it is readily 
conceded that the language originally employed in the second, 
and afterward carried into the twelfth article of the Constitu¬ 
tion, might have been made much more explicit than it is. 
found to be; and from this arises the necessity of a fair and 
reasonable construction, which shall preserve the intention of 
those who framed and adopted the instrument. 

I need not mention the time-honored principles which 
guide in such an inquiry. Suffice it to say that, whether we 
look to the men who employed the language, to the great ob- 


6 


jects they were endeavoring to accomplish, to the nature and 
purpose of this particular provision, to the symmetry and con¬ 
sistency of their work as a whole, or to the very language of 
this article itself, the idea is equally repelled that it was ever 
intended to commit this delicate trust to a mere presiding 
officer of one branch of the national Legislature (who might 
be, and several times already has been, a candidate for the 
office himself), rather than to the representatives of the people 
and the States, whose organized presence at the very time and 
place is provided for. 

It is simply stating what is known to every intelligent 
man, to say that the members of that convention for ability, 
patriotism, and political experience, were among the first men 
of their age; that they were endeavoring to form a govern¬ 
ment complete, self-acting and self-adjusting in all its parts— 
founded not upon the physical force afforded by armies and 
navies, but upon the free suffrage and moral conviction of a 
great people. To the success of such a plan, internal peace 
and tranquillity were indispensable conditions, and an efficient 
mode for the settlement of disputes and controversies an ab¬ 
solute necessity. The debates abundantly show that the peri¬ 
odical selection of a chief Executive was regarded as likely to 
bring one of the heaviest strains upon the system ; and every 
member must have been deeply impressed with the danger 
that the violence of parties and the thirst of individuals for 
the distinctions and emoluments of office might beset such an 
election, from the first step to the last, with such fraud or 
violence as to defeat the true will of the people. 

It is true that the chief reliance was placed upon the 
States; but the last act in the process—and by no means the 
least important—that of collecting the aggregate will of the 
people of all the States, and ascertaining whether the votes 
cast on their behalf respectively had been given in conformity 
with their own laws, by persons competent to give them, and 
for persons competent to receive them in obedience to the re¬ 
quirements of the Constitution of the United States—must of 
necessity be the act of the common Government, and the duty 
could be discharged by no other. 

In the light of these considerations neither the language 


7 


nor purposes of the constitutional provision seem to be doubt¬ 
ful. 

After requiring the certified lists of the electors to be trans¬ 
mitted to the seat of Government, directed to the President of 
the Senate, this language follows: “ The President of the 
Senate shall, in the presence of the Senate and House of Rep¬ 
resentatives, open all the certificates, and the votes shall then 
he counted .” 

The language is completely inappropriate to devolve this 
last duty upon the President of the Senate. Twice as many 
words are used to make the sentence obscure as would have 
been necessary to make it perfectly plain. One plain com¬ 
mand is laid upon this officer: he “shall open all the certifi¬ 
cates.” If it had been intended that he should perform the 
other duty also, all that was necessary, sensible, or appropriate, 
was to add the words—“and count the votes.” 

It is well known to every student of the Constitution that 
no such redundancies are anywhere to be found. It is re¬ 
markable alike for its sententious brevity and the purity of 
its English. But the votes must then be counted. By whom ? 
But one of two agencies is possible; either the President of 
the Senate or the Houses must perform the duty. If the for¬ 
mer, it is devolved upon a single man, possibly acting in his 
own case, and in any event placed under great temptations, 
and subjected to the most injurious suspicions ; without means 
at his command to inform himself whether the certificates are 
true or false, genuine or fictitious, or in case of more than one 
from the same State, which should be used—whose decisions 
when made would be likely to command very little respect, 
and might reflect lasting discredit upon the candidate who 
had profited by them. On the other hand, if the right be¬ 
longs to the Houses, it is devolved upon bodies whose mem¬ 
bers are drawn from every State, and from every section of 
the country ; to whose control is committed the national Treas¬ 
ury, with the most ample powers to compel the appearance of 
persons and the production of papers necessary to a full under¬ 
standing of the disputed questions which may arise, respect¬ 
ing the honesty or legality of the votes returned ; and, finally, 
whose conclusions when announced would generally be re- 


8 


ceived as the final judgment of the public ; at the same time 
satisfying the moral sense of the country, and insuring the 
public tranquillity. 

I take no liberties with the language of the sentence in 
arriving at the conclusion that the change of phraseology 
which occurs in it evinces a change of purpose; and that 
when correctly construed it imposes only upon the President 
of the Senate the appropriate duty of a presiding officer—the 
obligation of receiving, opening, and laying before the Houses 
over which he presides, all the certificates purporting to come 
from the electors ; and that the obligations of the Houses then 
arise to examine and canvass them all, and by a count of the 
legal votes therein contained to determine upon whom the 
choice of the American people has fallen. 

This is but following the standard rules of interpretation, 
which require equivocal language to be so used, if possible, 
as to avoid absurd or inconvenient consequences, and to give 
some meaning and a sensible application to all the words em¬ 
ployed. 

2. While this construction preserves intact all the just 
rights of the States, it makes the Constitution harmonious 
and consistent in all its parts. Without it no adequate pro¬ 
vision has been made for protecting the executive department 
from illegality, fraud, or even usurpation. That so wise a 
body of men should have made such a fatal omission, leaving 
that department to the results of chance, is not to be believed. 
But the right of the States over the constitution of this de¬ 
partment is much too broadly stated, when it is claimed to be 
larger or more absolute than over the legislative department. 
Both are alike subject to the paramount provisions of the Con¬ 
stitution; and no State has the right to be represented by 
whom it may please, either in Congress or the electoral col¬ 
lege, but only by such persons as have the qualifications pre¬ 
scribed in the Constitution. Hor have the electors of any 
State the unrestrained right to vote for whom they may please 
for President or Yice-President, but only for such persons 
as have the qualifications required. I grant in the fullest 
manner the right of the States to prescribe the manner of ap¬ 
pointing the requisite number of qualified persons for electors, 


9 


and their further right to have the legal votes of the persons 
thus appointed , in accordance with their laws , counted in the 
general canvass. But it would be little less than preposterous 
to claim that one clause of the Constitution had required 
votes to be counted which another had declared illegal or 
positively prohibited, or that the votes of persons not ap¬ 
pointed in any State, although presenting themselves with a 
fictitious, false, or fraudulent certificate, should be counted, in 
violation alike of the laws of the State and of the Constitution. 
All such attempts would involve so palpable a fraud upon the 
common bond of union, and upon the other parties to it, as 
probably to receive no countenance from any quarter. But 
when such questions arise, often dependent upcn facts outside 
the face of the papers presented, a competent tribunal to set¬ 
tle them to the satisfaction of the country becomes an indis¬ 
pensable necessity; and in my opinion it has been supplied 
in the two branches of the national Legislature : that, as 
each branch has been given the power to judge of the elec¬ 
tions, returns, and qualifications of its own members, so both 
together have been invested with the most ample authority to 
judge of and honestly count the votes returned for President 
and Yice-President of the United States, and under the most 
solemn obligation to see that the Constitution is not violated, 
or the legally-expressed will of the people perverted. 

3. But if all other considerations for vesting this power in 
Congress should be thought inconclusive, the long practice 
and numerous precedents of its exercise ought to be deemed 
utterly conclusive of the proper construction of the constitu¬ 
tional provision. It is impracticable for me to enter into de¬ 
tails. Suffice it to say that there never has been a moment 
of time, from the complete organization of the Government to 
the present, that the Houses have not claimed and exercised 
this right; and, during all that long period, no President of 
the Senate has ever claimed or exercised the right of counting 
or proclaiming a vote not authorized by the Houses. 

From first to last the course of proceeding has been nearly 
the same. By previous resolution of the Houses a joint meet¬ 
ing has been provided for at the appointed time; the Senate 
appointing one teller, and the House two, to make a list of the 


10 


votes and declare tlie result to the President of the Senate, 
who should announce the same and the persons elected to the 
Houses, which should be deemed a sufficient declaration of the 
choice made. At the meeting the President of the Senate 
generally opened the packages and delivered them to the tell¬ 
ers, who read the certificates to the Houses when requested, 
and delivered a list of the votes to the presiding officer, who 
made the announcement required by the joint resolution. 

For many years, no objection being made to any vote, the 
proceedings were entirely formal; but during this time they 
were always conducted as directed by the Houses, and the 
votes were actually counted by their regular organs—the 
tellers. 

The case of Missouri in the canvass of 1821 is perhaps the 
first in which the question actually arose, upon objection made 
to the votes from a State. The Houses did not decide upon 
the validity of the objection, but they exercised the power 
quite as emphatically by directing the President of the Senate 
to announce the vote of that State hypothetically; and if, in 
any event, the result of the election was the same, to declare 
the persons elected. The same course was taken in the can¬ 
vass of 1837 with the votes from the State of Michigan. 

The matured opinion of that day as to the province of the 
Houses is very clearly indicated in the preliminary statement 
of the able President of the Senate. He said : “ The two 
Houses being now convened for the purpose of counting the 
electoral votes for President and Vice-President of the United 
States, the President of the Senate will, in pursuance of the 
provisions of the Constitution, proceed to open the votes 
and deliver them to the tellers, in order that they may be 
counted.” 

The next occasion of particular interest, in its bearing upon 
the general question, is the canvass of 1857, when objection 
was made to the votes from the State of Wisconsin. It is 
impossible to say what disposition, if any, the Houses made 
of the objection, or whether the votes were finally counted. 
But the debate is instructive for the opinions of such men as 
Cass, Douglas, Crittenden. Humphrey Marshall, and others, 
in favor of the right of the Houses, and for the unqualified 


11 


disclaimer of the President of the Senate of any right to de¬ 
cide whether “any vote was a good or a bad vote.” 

We next come to the joint resolution of the two Houses, 
“declaring certain States not entitled to representation in the 
electoral college,” passed shortly prior to the canvass of 1865. 
This resolution was sent to Mr. Lincoln for his approval. He 
signed it, as he says in his message of February 8, 1865, “in 
deference to the view of Congress implied in its passage and 
presentation to him;” but he adds: “In his own view, how¬ 
ever, the two Houses of Congress, convened under the twelfth 
article of the Constitution, have complete power to exclude 
from counting all electoral votes deemed by them to be illegal • 
and it is not competent for the Executive to defeat or obstruct 
that power by a veto, as would be the case if his action were 
at all essential in the matter. He disclaims ail right of the 
Executive to interfere in any way in the matter of canvassing 
or counting electoral votes.” 

About the same time was adopted the twenty-second joint 
rule of the Houses, by which, as is well known, the certificates, 
when opened and delivered to the tellers, were required to be 
read in the presence and hearing of the Houses; and,if, upon 
such reading, any question was raised in regard to counting 
the votes therein certified, the Houses should separately con¬ 
sider and decide it, and no vote objected to should be counted, 
except upon the concurrent, affirmative vote of both Houses. 

It is not a material question whether this rule should still 
be regarded as operative or not, since it is clear that it could 
not enlarge or diminish the powers granted by the Constitu¬ 
tion. But I am certainly authorized to assume that those who 
voted for its adoption did so upon the clear conviction that 
they were properly interpreting the constitutional grant; and 
that the nearly unanimous votes by which it was carried were 
not given with any view of diminishing a needful authority 
on the one hand or usurping power on the other. It is there¬ 
fore a precedent of much weight; and, as an expression of the 
matured opinion of the men composing that Congress, it could 
scarcely be more emphatic. 

The subject was again brought to public attention in the 
canvass of 1869. When the certificate from the State of 


12 


Louisiana was read, objection was made to counting the 
votes therein certified, and, upon the proposal that the Senate 
should withdraw in order that the objection might be consid¬ 
ered by each of the Houses, and' the joint rule being read, a 
member of the House raised a question of order, and, citing 
the constitutional provision, insisted that the rule was u in 
direct contravention of the terms of the Constitution.” Ben¬ 
jamin F. Wade, of Ohio, was then President of the Senate, 
and near the close of the eighteenth year of his service in 
that body. In passing upon the question of order, he said: 
“ The rule which has been read is one which was adopted by 
both Houses. The Chair declines to entertain the question of 
order, but will say that he believes the rule to be in accordance 
with the Constitution .” 

The Houses then proceeded to consider the objection, and 
ordered the votes to be counted ; but, upon consideration of a 
like objection to the votes from Georgia, they refused to count 
them, except in the hypothetical manner employed in the pre¬ 
vious cases of Missouri and Michigan. 

The objections to votes in the canvass of 1873 were still 
more numerous, and the power of the Houses more extensive¬ 
ly applied than upon any previous occasion. Without de¬ 
scending to particulars, it may be enough to say that, as a 
result of all objections, three votes from the State of Georgia, 
and all the votes from the States of Arkansas and Louisiana, 
were rejected from the electoral count, either because one or 
both of the Houses refused to allow them to be counted. It 
is noticeable also that the leading objection made to the count 
of the Arkansas vote was “ because the official returns of the 
election in said State, made according to the laws of said 
State, show that the persons certified to by the Secretary of 
said State as elected were not elected as electors for President 
and Vice-President of the United States at the election held 
November 5, 1872 ;” and that, while constant reference was 
made to the joint rule, no intimation w T as heard that it con¬ 
flicted with the Constitution. 

To these repeated instances of the proceedings had at joint 
meetings of the Houses, it is only necessary to add, as ex¬ 
pressive of the continued opinion of the Senate, the passage of 


13 


Mr. Morton’s bill by that body at its last session. So far as 
concerns any constitutional question, that bill accords to the 
Houses all the power and authority ever asserted by the joint 
rule or the previous practice of Congress; and I have the 
right to assume that it passed upon the reasons assigned by its 
author, when he said : “ I do not accept the suggestion that the 
Yice-President of the United States has anything more to do in 
the business of counting the votes for President and Yice-Presi¬ 
dent than that specific duty which is prescribed for and enjoined 
upon him by the Constitution. That duty is, in the presence 
of the Senate and House of Representatives, to open the cer¬ 
tificates. There being no other duty assigned to him, I infer 
naturally that he is to do nothing more.” And after consider¬ 
ing at some length the necessity of a tribunal to decide upon 
conflicting returns, or any other question arising in the course 
of counting the votes, he says: The duty is imposed upon 
the two Houses of Congress. They alone can perform it .” 
Pointed and positive as this language is, it is not more so than 
that of Mr. Clay, in 1821 , when he declared : “ The two Houses 
were called on to enumerate the votes for President.and Yice- 
President ; of course, they were called on to decide ichat are 
votes.” 

It is thus made apparent, I think, to every comprehension 
that for a period of time much longer than the public life of 
any man living, every department and officer of the Govern¬ 
ment before whom such a question could arise, including both 
branches of Congress, the successive Presidents of the Senate, 
and the President of the United States, have (against oppos¬ 
ing individual opinions, I grant) concurred in holding that the 
duty of canvassing and counting the electoral votes was de¬ 
volved by the Constitution upon the two Houses of Congress. 
The vast significance of this fact will be readily appreciated 
by every statesman and lawyer deserving the name, and in¬ 
deed by everv intelligert man having a care for the stability 
of our institutions. 

So long as language remains the imperfect vehicle of 
thought that it is, and so many questions are left to arise 
upon its true meaning and proper application, constitutions 
and statutes alike must submit to the ordeal of interpretation 


14 


in the proper tribunals. But when questions of this nature 
have over and over again been decided in the same way, cov¬ 
ering a long period of time, such decisions do not alone fur¬ 
nish evidence of the correctness of the construction adopted, 
but the law founds upon them one of its cherished maxims ; 
and from that time stare decisis becomes the rule alike of 
safety and repose. And this, upon the most rational prin¬ 
ciples. The Constitution of the United States is the work 
of the people of the States, who, in the mode provided, can 
alter or change it at their pleasure. If they acquiesce for a 
long time in a construction of one of its provisions, the pre¬ 
sumption arises that it is interpreted according to their wishes, 
and the construction becomes in effect a part of the text itself. 
I am aware that none of these precedents were made when 
they could operate to change the result of an election ; but in 
that consists their chief value, since it cannot be supposed that 
either personal or party considerations influenced, or at the 
most controlled, the judgment of the Houses. 

I am also aware that many persons think this an unsafe 
deposit of so delicate a power, and that it will be used to 
further the designs and accomplish the ends of political par¬ 
ties. Ho doubt all power may be abused and perverted ; but 
no one has yet pointed out a safer depository of this authority ; 
and if, unfortunately, the time shall ever come when neither 
the honor, oath, nor frequent accountability of the represent¬ 
atives of the people and the States can be relied upon to 
secure justice, impartiality, and fair dealing, between all the 
members of the Union, it may well be doubted whether we 
have not arrived at the point where constitutional arrange¬ 
ments will cease to furnish any effectual remedy for the ills 
that may afflict us. 

And here I might w r ell stop, my only object being to 
demonstrate that the duty of sifting, canvassing, and count¬ 
ing the electoral votes, is cast upon the tw r o Houses of Con¬ 
gress. It follows that it is a duty which cannot be declined 
by them, and that every member owes it to himself, to his 
State or district, and to the country at large, to meet the re¬ 
sponsibility in that spirit of justice and truth which never 
fails to command the approval of the matured judgment and 


15 


sober reflection of the people. And it further follows, unless 
I greatly mistake the temper of the country, that any failure 
properly to perform this duty, or any declaration of a false 
result, would encounter the instant reprobation of all right- 
thinking men. 

I have not intended to enter upon an examination of the 
proper course of proceeding, or the principles which should 
govern the two Houses in the discharge of this duty, knowing 
that the whole matter is in much abler hands. But I cannot 
forbear to say that it sounds very strangely in the ears of a 
lawyer, accustomed to read from Coke down, that fraud 
vitiates all transactions into which it enters, even the most 
solemn judicial proceedings; to be told that the votes of men 
who were never elected in a State, but have fraudulently pro¬ 
cured the requisite certificate, must nevertheless be received 
and counted. The short and conclusive answer to such a 
proposition is, that the men were never chosen for electors, 
and that, as illegal votes cannot be counted, nothing can be 
more distinctly illegal than falsehood and fraud. 

I should certainly be astonished to find that while the 
Government of the Union was strong enough to compel the 
authorities of the States to comply with all the required for¬ 
malities on pain of having their votes rejected, it quailed be¬ 
fore falsehood and fraud, and was compelled to allow mere 
intruders to usurp the privileges and wdeld the powers of a 
sovereign State in the Union ; that while formalities must be 
observed, no adequate remedy had been provided for expelling 
the fatal poison upon which the life of the republic might 
depend. Very truly yours, 


B. P. Ranney. 










LIBRARY OF CONGRFQ^ 

, »»lilll»iii 

0 028 001 910 0 


